GHASIRAM Vs. MAHADEVAMMA

JUDGEMENT

(1.) This appeal relates only to an item claimed as tu costs. Respondents \ to 3 hurein were the plaintifs in OS.45/69 on the file of the, Add Civil Judge, Gulbarga. they filed a suit for recovery of certain sum of money due on accounts against a, firm of which the appellant, who was defendant No.4, and three, others, on the ground that they, as partners of the said firm were liable for the claim. Defendants 1 and 3 entered into a compromise. Accordingly the suit was decreed against them. Defendants 2 and 4 contested the claim of the plaintiffs. The defence of defendant 4 was that he was not one of the partners of the firm consisting of defendants 1 to 3 and the claim against him was not sustainable. The, Civil Judge came, to the conclusion that defendants 1 to 3 were only the partners of the firm and not defendant 4. He, therefore, dismissed the suit of the plaintiff against defendant 4. The learned Civil Judge awarded costs to the plaintiffs against defendants 1 to 3, but dismissed the suit of the plaintiffs against defendant 4 without costs. In other words, the Civil Judge awarded costs to the plaintiffs who succeeded against defendants 1 to 3, but did not allow costs to defendant 4 who succeeded against the plaintiffs. The Civil Judge has given no reason for disallowing costs to defendant 4.

(2.) The parties went to trial Issues were framed, documents were filed and evidence was recorded. The defence by defendant 4 was upheld- The. learned Civil Judge, therefore, should have awarded costs to Deft. 4.

(3.) It was urged by the learned Counsel for the plaintiffs that costs are in the discretion of the trial Count and that it was beyond the prpvince of the appellate Court to interfere with the exercise of that discretion. He. quoted number of authorities in support of the, position that when the Court of first instance exercised a discretion with reference to costs in s particular way, that should not be interfered with in appeal. To this general proposition, there could be no demur. But the point here is something different. It is one thing to say that when discretion is exercised in one way on particular facts it should not be interfered with by a Court of appeal; it is quite different thing to say that even when the Court of appeal differs on its view of the facts, it could not interfere with the order for costs made by the trial Court.